Rottmann v Brittain

The privilege against self-incrimination does not ordinarily protect a bankrupt from answering questions merely because the feared criminal proceedings arise under foreign law. The court must assess whether continuing a public examination would prejudice a fair trial, including the possible later use of compelled answers. A private examination may provide a sufficient safeguard where the bankruptcy court controls disclosure and use of the transcript. The English court controls its own proceedings, while the foreign court determines the use of the material in any foreign trial. A discretionary adjournment decision will stand where it falls within the generous ambit of reasonable disagreement.

Mr Michael Rottmann, a German citizen facing possible criminal proceedings in Germany and subject to an English bankruptcy order, was ordered to attend a public examination under the Insolvency Rules of 1986. He sought an adjournment under rule 6.175(6), arguing that compelled answers might incriminate him in Germany and breach article 6 of the European Convention of Human Rights.

His Honour Judge Kaye QC suspended the public examination and directed a private examination before a High Court judge, with control over the transcript. Mr Rottmann sought permission to appeal. The central issue was whether continuing the public examination would be calculated to prejudice a fair trial of the German criminal proceedings.

1. Ward LJ delivered the judgment, with Keene LJ and Lawrence Collins LJ agreeing. The application for permission to appeal was refused. The court permitted its judgments to be cited as if delivered on a full appeal.
2. Rule 6.175(6) required the court to assess whether continuing the public examination would be calculated to prejudice a fair trial. That assessment was necessarily hypothetical because the questions, answers and possible incriminating effect were unknown.
3. Under rule 6.175(1) of the Insolvency Rules of 1986, the bankrupt would ordinarily be required to answer relevant questions, even if the answers might incriminate him. Re Atherton [1912] 2 KB 251 supported that conclusion. Brannigan v Davison [1997] AC 238 confirmed that the common-law privilege does not extend to criminal or penal sanctions arising under foreign law.
4. The court left open whether an inherent domestic discretion might nevertheless excuse self-incriminating answers where the foreign-law privilege did not apply.
5. Article 6 of the European Convention of Human Rights did not require a different result. Saunders v United Kingdom [1997] 23 EHRR 313 demonstrated that the critical issue is the use made of compelled evidence at the criminal trial. Apparently non-incriminating answers may still be harmful if used to support the prosecution or undermine credibility.
6. The private examination provided sufficient protection. The bankruptcy court controlled disclosure and use of the transcript, and disclosure in chambers without permission could constitute contempt of court. Section 14 of the Civil Evidence Act 1968 reflected the common-law position and was compatible with the Convention. Any objection to use of the material in Germany was for the German court.
7. His Honour Judge Kaye QC had exercised his discretion within the generous ambit of reasonable disagreement. No proper basis for interference was shown.

• Court of Appeal (Civil Division): Lloyd LJ initially refused permission. On renewal, Mummery LJ adjourned the application to the full court. The full court refused the application and permitted citation of its judgments as if given on a full appeal.
• Chancery Division (in bankruptcy): His Honour Judge Kaye QC suspended the public examination until further order, conditional on a private examination before a High Court judge.